The facts of the case are plain and tragic. In March 2024, a 17-year-old was killed in Las Vegas when he was hit by a car being driven by an 18-year-old. The 17-year-old was in the road, outside a marked crosswalk. The 18-year-old was speeding excessively. 

There were no drugs or alcohol involved. The 18-year-old had no prior criminal record. By all accounts, the 17-year-old was a great kid.

The judge in the case followed the true mandates of American jurisprudence and granted the defendant probation. 

Unsurprisingly, the judge's ruling immediately became the fodder for television and news articles (including unsubstantiated claims of drag racing), multiple letters to the editor and an op-ed (replete with spurious and unsupported conclusions based on New York Post stories) in the Las Vegas Review-Journal, all of which uniformly and unfairly criticized the judge. 

They called the sentence "trash," "a slap on the wrist" and a "message to the community that there is no consequence for killing people in Nevada." 

The common thread connecting these people espousing these positions is that none show even a basic understanding of probation. Why would they? Unless they've been on probation, most can't appreciate how even the U.S. Supreme Court has acknowledged that probation is not leniency, but a serious punishment and a restriction of freedom.

People lose their minds when anyone gets probation for a crime they find particularly abhorrent. Or if they have some connection or empathy for the victims of the crime. Or if they generally think society is too "soft" on crime and that only more incarceration in the already most incarcerated democracy in history will make us "safe."

When I suggest that we shouldn't condemn (as many do) but instead celebrate judges who have the courage to grant an individual probation, a common retort I hear is, "Well, you'd feel differently if the victim was you or your child."

I always admit they are right. That if I were in that position, there's a great likelihood I would be angry at the judge and curse the system. 

But that's the point. There's a reason why a jury can't be composed of the family members of the victim. There's great wisdom in not allowing my personal desire to see another person suffer to the maximum extent allowed by law (or more) to be a guidepost for justice in a functional, civilized society. 

Folks are rarely convinced. 

Here's a thing or two you should know about the concept of probation before you start quoting the New York Post as a moral compass for what's right and wrong. 

Nevada's list of offenses that carry mandatory prison time is significant. It includes murder, sexual assault, high-level drug trafficking, first-degree kidnapping, robbery with use of a deadly weapon and felony domestic violence. There's also a list of people who, because of their past criminal records, do not qualify for probation. That means the Nevada Legislature has already indicated who absolutely cannot be given probation, meaning all other crimes must be considered for probation. 

And probation, by definition, means a person has been given a real sentence of imprisonment. Yes, it's suspended or delayed, but only for so long as all the arduous conditions of probation are met. In my circles, it is euphemistically called "held over a person's head." 

This sentence can be for five years, which might be longer than a corresponding straight-to-prison sentence for some crimes. Indeed, that delayed sentence is often huge — even bigger than what they might have gotten if the judge opted not to give probation. And judges regularly impose that real prison sentence for any failure to comply with a long, long list of important and arduous requirements that must be followed every day as part of probation. 

These are called "terms and conditions" of probation and can include the following: refraining from even being accused of any additional crime; working full-time or volunteering full-time if they can't find a job; refraining from drugs and alcohol (constant testing is in place); getting drug treatment; completing high school; intense classes, therapy, curfews; loss of driving privileges; being prohibited from using the internet; house arrest; and, if a judge feels like some incarceration is necessary, up to a year in jail just to get the probation started. 

Those sentenced to probation also have to pay sometimes large fees and must be constantly accessible to their probation officer, who can search them or their telephones any time without a warrant. 

In other words, the person granted probation is required not only to basically be a perfect citizen who contributes to society and betters themself, but the original prison penalty, which is always there, will be imposed for anything short of that.  

It's also worth noting that in most cases where people are upset about probation, a felony is involved. That means in addition to the consequences surrounding the terms and conditions, the person is branded a felon — often for life. This means a loss of basic rights (voting, gun ownership) and new challenges in housing, employment and obtaining financial solvency.

But I get it. Some people just have it in their minds that prison is the only way to deal with someone who has caused something really bad to happen. 

Sure, our "gut" wants people who have done bad things to suffer — "it's not supposed to be a vacation" — but is it OK that, by any reasonable measure, prison is a horrific and expensive warehouse that causes net harm to the individuals, their families and society? 

Evidence shows that society is negatively affected by sending people to prison, especially young people, for a litany of reasons. Extended removal from the workplace and family causes secondary traumas, including homelessness, on innocent family members. The levels of post-traumatic stress disorder and health issues sustained (if they don't die or aren't killed by fellow inmates) creates a drain on societal resources and barriers for peaceful reintegration into communities. Recidivism — especially for first-time offenders — increases after prison stints versus less harsh penalties such as supervised probation. All of this costs society money and is negligible if the goal is to make us safer or reduce crime.

I think the biggest disconnect over "probation" is that the public doesn't have a clear idea of what should be considered in deciding whether to give probation. Honestly, I don't think some judges have a clear idea, either. 

But if the Nevada Legislature or judiciary required judges to clearly articulate every factor they are aware of — for and against probation — on the record, and show their work in reaching their conclusion, we'd have more acceptance of this serious punishment. 

Then, if that math doesn't math out, and it looks like pure vengeance or fear of the next election is the real reason for a harsher sentence, the higher courts could send the case to a new judge willing to make the hard call.

Far from being a break or "getting off easy," probation is a valuable and effective tool in actual punishment. It may not be what those closest to the case want, or what those with an intractable perspective about "softness" on crime think. But if the end goal is a humane, efficient society that punishes people only enough to make the world a better place, then we need to change our view of probation. 

Our innate virtues and values as a society should never succumb to our desire to inflict pain and exact vengeance. Even for those — and especially for those — among us who have failed the hardest.

Dayvid Figler is a criminal defense attorney, freelance essayist and former host of the City Cast Las Vegas podcast. He received the State Bar of Nevada's Medal of Justice in 2019. He also publishes a Substack that muses about all things Las Vegas.